The decision of the Constitutional Court, dated September 17, 2020 and numbered 2016/13010, related to the employer’s monitoring of corporate e-mail accounts of employees was published in the Official Gazette numbered 31274 and dated October 14, 2020.

In the application subject to the Constitutional Court’s decision, the applicant, who was working in an attorney partnership, has claimed that his right to demand protection of personal data and freedom of communication within the scope of respect for private life had been violated since his corporate e-mail account and personal correspondence had been examined by the employer without his consent, that there were no written or verbal rule in the workplace that states that the employees’ e-mails can be monitored, and the employment contract was terminated due to these correspondences.

In the case at hand, a corporate e-mail address was provided to the employee, and corporate e-mail information, e-mail traffic and content were stored on the employer's server. Other employees filed complaints about the employee; where it was stated that the relationship between the employee and the team manager was far from objectivity, the team manager supported the employee in every situation, the employee was rude to other employees, and the necessary environment for conducting the projects was lost. Upon the complaints, the employee's corporate e-mail correspondence had been examined and the employment contract of the applicant had been terminated based on the findings of the examination.

The employee claimed that his employment contract was terminated with bad faith and filed a reemployment lawsuit. The labor court decided to dismiss the case, stating that there was a justified reason for termination and that the termination was valid, emphasizing that insults were used against other employees via the corporate e-mail address. This verdict of the court was upheld by the Court of Cassation.

Thereafter, the employee filed an individual application to the Constitutional Court. In its decision, the Constitutional Court made the following evaluations by setting out the general principles of employers' monitoring of employee e-mails:

• The employer can monitor the communication tools available to the employee for reasons that can be justified and legitimatized, such as the efficient conduct of the business, control of the information flow, protection against criminal and legal liability due to the employee's actions, measuring efficiency, and ensuring safety. However, the management authority of the employer is limited to conduct of the work and ensuring the order and security of the workplace. Therefore, monitoring cannot be of a nature that would harm the essence of the fundamental rights and freedoms of the employee.
• The employer's processing personal data and monitoring the communication flow by creating a corporate e-mail account for its employees is intended to ensure the efficient execution of the business and it should be considered that employer has a legitimate interest in terms of the management of the workplace. However, it is necessary to provide full and clear information to the employees in advance that the communication will be monitored, and this information should consist of the legal basis of the monitoring and personal data processing, the purposes, the scope, the period of storage of the data and the rights of the data subject, the results of the monitoring and what this information will be used for. Otherwise, it may be accepted that employees who were not informed of such monitoring have a reasonable expectation that their fundamental rights and freedoms would not be interfered within the workplace and that they can use their e-mails for personal correspondence. In the case subjected to the decision, no such information had been provided to the employees.
• If the employer has other suitable and less intrusive methods to fulfil its purpose on this matter, those alternative methods should have been used at first. However, in the current case, while other methods were available to employer, such as analysis of complaints and defenses, listening to witnesses, examination of workplace records, the employer had not clearly revealed why it is necessary to examine e-mail contents.
• The scope of the examination must be specific and limited. The data obtained as a result of the examination must be used in accordance with the purpose, and the number of people to be examined and the duration must be determined accordingly. However, in the current case, correspondence with third parties within the scope of the monitoring had also been examined, the scope of the monitoring was uncertain and was not limited.

The Constitutional Court decided that the applicant's right to request protection of personal data and freedom of communication was violated and that the non-pecuniary damages must be paid to the applicant on the grounds that the employees were not informed in advance about the examination and the other criteria listed above were not complied with, and sent its decision to the labor court for a retrial.

Conclusion

As stated in the decision of the Constitutional Court, in order for employers to monitor the workplace communication tools, (i) employers must have legitimate purposes, (ii) employees must be informed about the monitoring and (iii) the monitoring must not create an excessive interference with the fundamental rights and freedoms of employees.